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Introduction
The Avoiding Complicity in Mistreatment by Foreign Entities Act 2019 (ACMFEA), aims to mitigate the risk of mistreatment of an individual which could be attributed to Government of Canada departments or agencies sharing information with foreign entities. The Minister of Transport issued Directions for Avoiding Complicity in Mistreatment by Foreign Entities to the Deputy Minister of Transport (hereinafter referred to as the 2019 Directions) in September 2019.
The 2019 Directions prohibit Transport Canada (TC) officials from disclosing information to, and requesting information from, a foreign entity if the exchange of information could result in a substantial risk of mistreatment of an individual. The 2019 Directions also prohibit certain uses of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.
Pursuant to the reporting requirements contained in the ACMFEA, the Deputy Minister of Transport hereby submits its annual report to the Honourable Omar Alghabra, Minister of Transport, covering the implementation of the Directions for calendar year 2021.
The ACMFEA and the Directions have three annual requirements for TC which are outlined in the TC Corporate Policy on Implementation of the ACMFEA:
- Scan for relevant program areas or activities that carry risks related to the ACMFEA;
- Submission of an annual report on relevant program activities to the Minister; and
- The annual report must be sent to NSIRA and NSICoP following delivery to the Minister of Transport, and published on the TC website.
In general, the Directions require that the Deputy Minister ensure that TC officials:
- Not share information with a foreign entity that creates a substantial risk of someone being mistreated, unless the risk can be mitigated;
- Not ask for information from a foreign entity that could lead to someone being harmed or tortured, unless the risk can be managed; and
- The Directions also impose requirements on the Deputy Minister to ensure that TC officials do not use information that was obtained through mistreatment, in certain circumstances.
Background
An internal review conducted by Kim Benjamin, Director General of Intermodal Safety, Security & Emergency Preparedness, in December 2021 confirmed that for that calendar year the 2019 Directions only applied to TC aviation security activities (disclosures) pursuant to the Secure Air Travel Act (SATA) in the context of the Passenger Protect Program (PPP).
The PPP is managed by Public Safety Canada (PS). The Program’s goal is to keep individuals who are assessed to pose a security threat from boarding a plane.
TC is a member of the PS-chaired Passenger Protect Advisory Group (along with Canada Border Services Agency, Canadian Security Intelligence Service, Department of Justice, Immigration, Refugees and Citizenship Canada, and Royal Canadian Mounted Police) which makes recommendations to the Minister of Public Safety Canada on whether a passenger should be prohibited to fly. Apart from participation in working group deliberations, the primary TC role in the program has been to share the approved SATA list with air carriers to facilitate passenger screening and, where applicable, denial of boarding rights.
- As of 4 November 2022 air carriers TC will no longer provide the SATA list to air carriers. From that point all SATA-related passenger screening will be performed in a centralized system administered internally by the Enhanced PPP Operation Centre.
- This will eliminate the direct exchange of SATA-related information by TC with air carriers.
- From that point, notification that an individual has been denied boarding under the program would be provided when attempting to check-in to a scheduled flight.
Mistreatment Risk Assessments
While TC has not been sharing any information gathered under the PPP other than the SATA list with air carriers, there has been a residual risk that individuals who are denied boarding in countries where air carriers are state-owned and that have a poor record of human rights may be susceptible to mistreatment.
During the 2021 reporting period, TC shared the SATA list with 60 air carriers, both domestic and international/trans-border. The SATA list includes identifying information such as name, aliases, date of birth and gender.
In the 13 years the program has been in existence, there have been no occurrences where an individual has been mistreated by a foreign entity following the receipt of a no-board direction.
Cases of Substantial Risk
During the 2021 reporting period, TC officials did not identify any cases where designation of an individual under the PPP created a heighted risk of mistreatment of an individual by a foreign entity. As such, no cases were referred to the Deputy Minister.